Your tenant is not paying rent: a step-by-step plan for landlords in Belgium

Is your tenant not paying rent? A tenant who is one month behind is an incident; a tenant who is three months behind is a case file. The difference almost never lies with the tenant, but with how quickly the landlord responds.

Below is the route that works, from the first reminder to eviction, with the time limits that really matter. One rule applies at every stage: stay within the law, because taking the law into your own hands always backfires on the landlord.

Step 1: a written reminder, straight away

By all means phone, but put everything in writing. A formal notice (ingebrekestelling / mise en demeure) sent by registered post states the unpaid months, the total amount, a specific payment deadline and a reservation of all rights, including rescission of the lease. That document will later be your evidence and the starting point of every time limit. As a rule, default interest on the unpaid rent also runs from the formal notice.

Enclose a statement of payments with the reminder: date, amount, payment reference. Judges appreciate a landlord who arrives with a clear account, and it deprives the tenant of the classic defence that “a lot has already been paid”.

Step 2: the rental deposit — what it can and cannot be used for

The rental deposit (huurwaarborg / garantie locative) serves as security, but you cannot dispose of it unilaterally. It is released only with the written agreement of both parties or on the basis of a court decision. A landlord who draws on it anyway to cover unpaid rent creates a second dispute on top of the first.

Moreover, the deposit is capped by law at two or three months’ rent, depending on the region and the form of the deposit. That rarely covers the full arrears plus the rental damage. In the proceedings, therefore, ask the court to release the deposit to you up to the amount of your claim. More about the rental deposit.

Step 3: the justice of the peace

The justice of the peace (vrederechter / juge de paix) for the place where the rented property is located has jurisdiction over all rental disputes, whatever the amount. Two routes are open to you:

• Conciliation. In principle free of charge, quick and informal: both parties are called to appear and the judge tries to bring about an agreement. If one is reached, it is recorded in an official report that is enforceable. With tenants who are in temporary difficulty, this often brings in money faster than a judgment.
• Proceedings on the merits, brought by application (verzoekschrift / requête) or by writ of summons (dagvaarding / citation). You ask for an order to pay the rent arrears with interest, rescission of the lease through the tenant’s fault, a reletting indemnity, eviction, an occupation indemnity until the tenant actually leaves, compensation for the rental damage and release of the deposit in your favour.

If you seek the eviction of a tenant from the home where they live, the court registry (in the case of an application) or the bailiff (in the case of a writ of summons) informs the public social welfare centre (OCMW / CPAS) of the claim; the Flemish Residential Tenancy Decree and the Brussels Housing Code do not allow the tenant to object to this. This is not a delay but a statutory step that sometimes provides the very solution: the centre can support the tenant and sometimes contribute to the payment.

Note also that the justice of the peace may grant the tenant time to pay, taking each party’s situation into account. A well-documented file then carries great weight. Read more about a rental dispute before the justice of the peace.

Step 4: eviction

An eviction requires an enforceable title, such as a judgment. From a home, it can in principle only be carried out one month after service of the judgment, subject to exceptions, for example where the tenant has already left the property or the court sets a different period. The bailiff (gerechtsdeurwaarder / huissier de justice) organises the enforcement and informs the tenant of the date in advance: in Flanders at least seven calendar days beforehand, in Brussels at least fifteen working days beforehand. In Brussels, a winter moratorium on court-ordered evictions also applies from 1 November to 15 March, with exceptions.

Expect a lead time of several months between the first reminder and the actual vacating of the property. That reality belongs in the assessment: an instalment plan with a strict acceleration clause, preferably recorded before the justice of the peace, is sometimes financially more attractive than proceedings that take months while the rent debt keeps growing. More about eviction.

Tenant not paying rent: which rules apply where?

Tenancy law has largely been devolved to the regions. For a home in the Flemish Region, the Flemish Residential Tenancy Decree (Vlaams Woninghuurdecreet) applies; for a home in Brussels, the Brussels Housing Code (Code bruxellois du Logement / Brusselse Huisvestingscode); for a home in Wallonia, the Walloon decree of 15 March 2018 on residential leases. They differ in areas such as notice periods, termination indemnities, the rental deposit, the check-in inventory and the rules on eviction.

For commercial premises, the Commercial Leases Act (Handelshuurwet / loi sur les baux commerciaux) applies where the tenant runs a retail business or a craft trade in direct contact with the public. For an office, the general lease rules of the old Civil Code usually apply. So first have the applicable regime determined: it shapes your entire strategy.

The documents that carry your case

• the registered lease;
• the check-in inventory (plaatsbeschrijving / état des lieux), drawn up jointly by both parties;
• proof of the rental deposit and of how it was provided;
• a chronological statement of payments;
• the formal notice and all correspondence, including registered letters with proof of posting;
• photographs or official findings where damage is visible.

What you had better not do

Changing the locks, cutting off electricity or water, or denying the tenant access: that is taking the law into your own hands. It gains you nothing but a counterclaim, and it undermines your credibility before the justice of the peace.

Likewise, unilaterally “terminating the lease for non-payment” is risky: termination by notice (Article 5.93 of the Civil Code) is at your own risk and is contested in lease matters, so it is best to ask the justice of the peace to rescind the lease for non-payment. An express termination clause in the lease offers no way out, because in lease matters such a clause is deemed unwritten. And even after rescission you may not remove the tenant yourself: that requires an enforceable title and a bailiff.

Frequently asked questions

Can I use the rental deposit to cover the unpaid rent?

Not unilaterally. The deposit is released only with the written agreement of both parties or on the basis of a court decision. In the proceedings, you can ask for the deposit to be released to you up to what the tenant owes you.

After how many months of arrears can I go to the justice of the peace?

The law does not set a minimum number of months. The justice of the peace assesses whether the non-payment is serious enough to justify rescinding the lease; persistent or repeated arrears weigh heavily in that assessment. So do not wait too long: the higher the debt climbs, the smaller the chance of recovering it all.

How long does it take before a defaulting tenant actually leaves?

Expect several months between the first reminder and vacant possession. After service of the judgment, a period of one month in principle still applies to a home before the eviction can be carried out, and in Brussels the winter moratorium can delay enforcement further.

Can I terminate the lease myself if the tenant does not pay?

Not on your own initiative. You ask the justice of the peace to rescind the lease for non-payment, and an express termination clause is deemed unwritten in lease matters. A landlord who changes the locks or cuts off utilities on their own authority risks a counterclaim.

What if the tenant leaves without paying?

The debt remains. On the basis of a judgment, the bailiff can recover the rent arrears, the interest and the rental damage, for example through attachment of wages or bank accounts, within the statutory limits on what can be attached.

Novex Advocaten: assistance for landlords

We draft the formal notice, conduct the proceedings before the justice of the peace and follow up enforcement with the bailiff. Send us the lease, the check-in inventory and the statement of payments, and you will quickly know which route is most effective in your case. We assist you in Dutch, French, English and Arabic.

Call 0484 99 22 72 or email asfour@novexadvocaten.be.